Allowed

Agasthyanath, v. Principal Secretary

Kerala HC21 Dec 2022WP(Crl.)/389/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by the defacto complainant alleging the police investigation into his son's suspicious death was inadequate. The Court directed the Station House Officer to hand over the case to the CBI for thorough inquiry by an officer of the rank of Deputy Superintendent of Police within one month.

What did the court decide?

The investigation of Crime No.167/2022 is directed to be entrusted to the CBI through an officer of the rank of Deputy Superintendent of Police within one month.

Agasthyanath, Vs Principal Secretary — Civil Procedure and Limitation | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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WEDNESDAY, THE 21ST DAY OF DECEMBER 2022 / 30TH AGRAHAYANA, 1944

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WP(CRL.) NO. 389 OF 2022

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PETITIONER/S:

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AGASTHYANATH,
AGED 70 YEARS
SON OF SUBBAYYAN, SANTIYACASA, EDAKULANGARA, KARODE
VILLAGE, KARODE P.O., THIRUVANANTHAPURAM, PIN 695506.
BY ADVS.
R.T.PRADEEP
M.BINDUDAS
K.C.HARISH

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RESPONDENT/S:

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1PRINCIPAL SECRETARY,
DEPARTMENT OF HOME, SECRETARIAT, THIRUVANANTHAPURAM,
PIN 695001.
2STATE POLICE CHIEF
POLICE HEADQUARTERS, VAZHUTHACAUD P.O.,
THIRUVANANTHAPURAM, PIN 695014
3DISTRICT POLICE CHIEF
DISTRICT CRIME BRANCH, EANCHAKKAL P O.
THIRUVANANTHAPURAM, PIN 695008
4C.B.C.I.D
REPRESENTED BY ITS SUPERINTENDENT, OFFICE OF
SUPERINTENDENT OF CBCID, PAZHAVANGADI,
THIRUVANANTHAPURAM, PIN 695024
5CENTRAL BUREAU OF INVESTIGATION,
REPRESENTED BY SUPERINTENDENT OF POLICE, SPECIAL
BRANCH, CBI OCR COMPLEX PO, VALLAKADAVU ROAD,
MUTTATHARA, THIRUVANANTHAPURAM, PIN 695008.
6STATION HOUSE OFFICER,
VITHURA POLICE STATION, VITHURA P.O.,
THIRUVANANTHAPURAM-695551.
7JOSE,
AGED 50 YEARS
VETTUVILAYIL, MAILACHAL, OTTASEKHARAMANGALAM P.O.,
THIRUVANANTHAPURAM-695125.
8SHIBU,
AGED 48 YEARS
VETTUVILAYIL, MAILACHAL, OTTASEKHARAMANGALAM P.O.,
THIRUVANANTHAPURAM-695125.
9ANEESH,

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WP(CRL) No.389 of 2022 2

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AGED 30 YEARS
S/O. PUTHUVAL MANIYAN, VETTUVILAYIL, MAILACHAL,
OTTASEKHARAMANGALAM P.O., THIRUVANANTHAPURAM-695125.
10JOY,
VETTUVILAYIL, MAILACHAL, OTTASEKHARAMANGALAM P.O.,
THIRUVANANTHAPURAM-695125.
BY ADVS.
FOR R1 TO R4 AND R6 BY SHRI.SUDHEER GOPALAKRISHNAN,
PUBLIC PROSECUTOR
FOR R5 BY SRI.MANU S., ASGI
FOR R7 TO R10 BY SRI. V.G.ARUN.

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THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
16.12.2022, THE COURT ON 21.12.2022 DELIVERED THE FOLLOWING:

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WP(CRL) No.389 of 2022 3

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O R D E R

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This Writ Petition is filed by the defacto
complainant in Crime No.167/2022 of Vithura

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Police Station, which is registered under
Sections 174 of the Code of Criminal Procedure
in respect of the premature death of his son.
Under suspicious circumstances.

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2.The incident occurred on 5.2.2022 at

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12.30 a.m. The deceased fell from the top of a
building while he was watering the concrete of a
two-storeyed building late at night on 5.2.2022.
The petitioner was informed of the matter by one
Suman Raj on 5.2.2022 in the early morning of 6
a.m., and it was conveyed to him that the
incident occurred when his son’s legs slipped
while watering the building. While undergoing
treatment at Medical College hospital,
petitioner’s son succumbed to the injuries on
11.02.2022. Regarding the said incident, Vithura

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WP(CRL) No.389 of 2022 4 Police registered Crime No.167/2022 under

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Section 174 of the Cr.PC and the investigation
is now in progress.

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investigation is not being conducted properly by
the 6th respondent. According to the petitioner,
his son's death could be a homicide at the hands
of respondents 7 to 10. It is also pointed out
that, right from the inception, the petitioner
was highlighting about role of the said

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respondents and submitting complaints after
complaints, before the authorities concerned,
but no investigation was being conducted, this
Writ Petition is filed by the petitioner in such

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circumstances seeking the following reliefs:

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i. To issue a writ of mandamus or any other
appropriate writ order or direction to
respondents 1 to 3 and 6 to invoke offences under
Indian Penal Code for criminal conspiracy, murder
and destruction of evidence as against
respondents 7 to 10 and to handover the
investigation of the Crime to CBI, CBCID or
Special Investigation Team headed by a police
officer not below the rank of Deputy

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WP(CRL) No.389 of 2022 5

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Superintendent of Police with impeccable honesty
and integrity so as to have a free and fair
investigation in the matter and to complete the
investigation within such time fixed by this
Hon’ble Court.

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ii.Such other reliefs which this Hon’ble
Court may deem fit and proper in the interest of
justice.”

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4.In response to the averments in the writ
petition, a statement has been filed by the 6th

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respondent. In the said statement, various steps

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which they have taken as part of the
investigation have been mentioned. It is stated
that the statement of several witnesses were
already recorded, and statements of more
witnesses are to be taken. It was also stated
that, the applications were filed to the cyber
cell to send the mobile tower dumps of the
alleged persons and to collect call data
records. The other inquiries are being carried
out as part of the investigation. It is further

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stated that an effective investigation would be

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conducted and a final report would be submitted.

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5.Heard Sri. R.T.Pradeep, the learned

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WP(CRL) No.389 of 2022 6 counsel for the petitioner, Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor for respondents 1 to 4 and 6, Sri. Manu S., the learned Additional Solicitor General of India for the 5^th respondent and Sri. V.G.Arun, the learned counsel for respondents 7 to 10.

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6.The learned counsel for the petitioner
raised various contentions pointing out the

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discrepancies and omissions in conducting the
investigation by the Police. The learned counsel
also pointed out specific instances which can be
construed as suspicious circumstances indicating

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the possibility of the case being a homicide.
The instances specifically referred to by the
learned counsel for the petitioner and also
averred explicitly in the Writ Petition are as
follows:

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i)The ambulance driver who had taken the

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deceased from the spot to the Medical College
Hospital stated that, he was called to the place

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WP(CRL) No.389 of 2022 7 of occurrence on the information that a person who suffered injuries in a motor cycle accident had to be taken to hospital. According to the said Ambulance driver, when he reached the spot he found 4-5 persons indulged in a brawl accusing and abusing each other. Immediately, when the Ambulance driver reached the spot, they stopped the verbal abuse and taken the person in the ambulance to the hospital.

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ii)Daughter, son-in-law and daughter-in-law

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of the petitioner were the bystanders of the
deceased while he was undergoing treatment in
the hospital. According to the said bystanders,
when the deceased became conscious, he revealed
that he was cheated and was hit at his head
while coming in the bike and knocked down.

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iii)According to the petitioner, the doctor

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who treated the deceased repelled the
affirmation of causing injury to the deceased by
falling from a two-storeyed building as there is

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WP(CRL) No.389 of 2022 8

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no internal bleeding in the head and no fracture

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at the neck and vertebrae.

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iv)The petitioner also relies on the
description of injuries sustained to the
deceased, and according to him, the same is
suggestive of the possibility of an assault. To
substantiate the same, the petitioner relies on
the Ext.P5 opinion expressed by Dr.Rajaram, a
former Professor and Head of the Department of
Forensic Medicine and Toxicology, Government
Medical College, Thrissur, having more than 36
years of experience in the field. After
analysing the postmortem certificate and
injuries, it was observed by him as follows:

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“Injury 1 was a sutured wound 9 cm long across
midline 13 cm above root of nose. Perusal of the
clinical photograph revealed that the placement was
front to back & not across. The sutures could have
been removed to see whether the wound was
incised/lacerated.

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The manner of production of the injury possible
was possible during a fall; where the victim
landed on is head; but taking into
consideration of injuries 3,4,10 & 16
production of injury on the top of head was not
possible during a fall. Usually when a person
falls from a height he could land up on his
head, buttocks, or feet. Fracture femur can

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WP(CRL) No.389 of 2022 9

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occur when a person lands up on his feet due to
transmitted force. The injury on the top of
head was resulted only by an assault. As said
earlier I may say that examination of brain
tissue was necessary to find out microscopic
haemorrhages involving brain to arrive to the
cause of death. It was also customary to incise
the sole of foot to examine for calcaneal
fracture & it was not seen done in this case.

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Injury number 2 was a contusion of moderate
size over the back of head; difficult to be
sustained during a fall because if he made his
landing on his top of head. It also pointed
towards assault.”

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v)The petitioner also contends that the

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demeanour of respondents 7 to 10 after the

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incident also creates suspicion. The mobile
phone of the deceased was handed over by the 9th

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accused after deleting the details and

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formatting the same. Notably, 8thand 9th

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respondents were the persons employed along with
the petitioner at the worksite. The bystanders

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of the deceased had stated that, whenever the

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deceased became conscious during the treatment,
he named respondents 7,8 and 9 as the persons

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who assaulted him. The 8th and 9th respondents

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were at the place of the incident at the

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relevant time. The 8th respondent did not turn up

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WP(CRL) No.389 of 2022 10

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at the hospital. The 7th respondent was a

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contractor of the said site, who engaged the
deceased for the work. The 8th respondent is the
brother-in-law of the 7th respondent, and the
petitioner alleges that the wife of the 8th
respondent was close to the deceased, which
probably resulted in the deceased's death.

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7.From the above, it can be seen that the
petitioner in the Writ Petition specifically
highlighted certain instances which create some
suspicion as to the death of the deceased. Those
aspects are to some extent suggestive of the
case being one of homicide. Even though specific
instances as referred to above are mentioned in
the writ petition, the statement submitted by
the 6th respondent in response to the averments
are very vague. No details about the persons

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whose statements were recorded by the
Investigating Officer are not seen mentioned.

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None of the instances mentioned in the Writ

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WP(CRL) No.389 of 2022 11

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Petition are referred to in the said statement,

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which would clearly indicate that no
investigation has been conducted so far to that

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direction. The discrepancies highlighted by the

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petitioner with the support of the expert
opinion of the Medical Professionals having
experience in the field also creates a suspicion
that this case is a homicide. However, no proper
explanation is forthcoming from the part of
Station House Officer for not conducting any
investigation in that direction.

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8.After perusing the entire materials, I
am of the view that the vague nature of the
statements submitted by the 6th respondent is
very conspicuous in the facts and circumstances
of the case particularly in view of the fact

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that, even in the inquest report, the close

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relatives of the deceased have stated about the
suspicion in the death of the deceased. As
mentioned above, specific instances are

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WP(CRL) No.389 of 2022 12 highlighted in the Writ Petition, which prima

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facie creates a doubt in a prudent mind as to a
case of homicide.

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conducted is not proceeding in the correct
direction, and the same is to be entrusted with
more experienced persons. Therefore, I find that

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the relief sought in the Writ Petition is to be
allowed.

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In such circumstances, This Writ Petition is
disposed of directing the 2nd respondent to pass
appropriate orders to entrust the investigation
of Crime No.167/2022 of Vithura Police Station
to the 4th respondent, who shall take necessary
steps to conduct an investigation into the case
through an officer, not below the rank of Deputy
Superintend of Police. The 2nd respondent shall
pass appropriate orders in this regard within a
period of one month from the date of receipt of

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WP(CRL) No.389 of 2022 13

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a copy of this judgment, and an effective
investigation shall be conducted by taking note
of the points highlighted by the petitioner as

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referred to above.

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 Sd/-

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 ZIYAD RAHMAN A.A.
 JUDGE

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pkk

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WP(CRL) No.389 of 2022 14

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APPENDIX OF WP(CRL.) 389/2022

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`PETITION`	`ER’S EXH`	`IBITS`
`Exhibit`	`P1`	`TRUE COPY`	`OF E.I.R. DATED 11.2.2022 IN`
		`CRIME NO`	`. 167/2022 OF VITHURA POLICE`
		`STATION B` `NEDUMANGAD`	`EFORE SUB DIVISIONAL MAGISTRATE,`
`Exhibit`	`P2`	`TRUE COPY`	`OF INQUEST REPORT DATED 12.2.2022`
		`IN CRIME` `STATION.`	`NO. 167/2022 OF VITHURA POLICE`
`Exhibit`	`P3`	`TRUE COPY`	`OF SCENE MAHAZAR DATED 12.2.2022`
		`IN CRIME` `STATION.`	`NO.167/2022 OF VITHURA POLICE`
`Exhibit`	`P4`	`TRUE COPY` `12.2.2022.`	`OF POSTMORTEM CERTIFICATE DATED`
`Exhibit`	`P5`	`TRUE COPY` `RAJARAM. N`	`OF EXPERT OPINION TENDERED BY DR.` `. DATED 16.3.2022.`
`Exhibit`	`P6`	`TRUE COPY` `BY PETITIO`	`OF REPRESENTATION DATED 12.4.2022` `NER BEFORE 2ND RESPONDENT`

Agasthyanath, v. Principal Secretary

Case brief

What is this about?

What did the court decide?

Agasthyanath, v. Principal Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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